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No verdict in Buffalo Billion case as jury deliberates

NEW YORK – A federal jury ended its first day of deliberations without a verdict Wednesday in the fraud and conspiracy case against Buffalo developer Louis Ciminelli, former SUNY Polytechnic Institute President Alain Kaloyeros and two Syracuse development officials.

Jurors gathered at the Daniel Patrick Moynihan U.S. Courthouse in lower Manhattan at 9:30 a.m. to begin considering whether the defendants concocted a fraudulent scheme to steer state construction contracts to preferred developers in Buffalo and Syracuse.

The jurors deliberated until 5:30 p.m., save for an hourlong lunch break, and will return at 9:30 a.m. Thursday.

For lawyers and defendants, the day was a long one of waiting – and not much more.

While Kaloyeros appeared in the courtroom sporadically, Ciminelli spent much of the day there, chatting with his attorneys or simply waiting.

Jurors, meanwhile, sent three notes to U.S. District Court Judge Valerie Caproni – twice asking for evidence from the trial to be sent to them and once saying they hoped to be dismissed at 5:30 p.m. instead of 6 p.m.

Among the evidence they requested were detailed phone records for the defendants and other key players in state development projects in Buffalo and Syracuse.

That could be an indication that jurors are looking for proof of the wire-fraud charges the defendants face.

For the defendants to be convicted of wire fraud, prosecutors have to prove that the scheme involved communications that crossed state lines and that occurred in part in Manhattan, where the U.S. Attorney for the Southern District of New York has jurisdiction.

For Ciminelli and Kaloyeros – both charged with conspiracy and wire fraud – the case seems to hinge in part on the testimony of Kevin Schuler, the former LPCiminelli vice president who pleaded guilty and served as a witness for the prosecution.

In her charge to the jury Tuesday, Caproni told jurors to consider Schuler's testimony carefully as it weighs whether Ciminelli and Kaloyeros rigged the bidding so that Ciminelli's company got to build the Buffalo Billion project at RiverBend, which now houses Tesla and Panasonic manufacturing facilities.

"You should ask yourselves whether he (Schuler) would benefit more by lying or by telling the truth," the judge said. "Did Mr. Schuler believe that his interests would be best served by testifying truthfully or falsely?"

Caproni told jurors that they are not permitted to draw conclusions about the guilt of any of the other defendants just on the basis of the fact that Schuler pleaded guilty. Instead, she said, they should consider what Schuler said and his motivations as they try to determine the guilt or innocence of the other defendants.

"If you believe that Mr. Schuler was motivated by hope of personal gain, was the motivation one that would cause him to lie, or was it one that would cause him to tell the truth?" Caproni said. "Did this motivation color his testimony?"

Schuler stood at the center of the closing arguments in the case, as well.

Paul Shechtman, a lawyer for Ciminelli, told jurors Tuesday that Schuler's testimony about the request for proposals, or RFP, for the RiverBend Buffalo Billion project actually exonerates Ciminelli.

Shechtman noted that Schuler said two things in the RFP pushed it in LPCiminelli's favor: A requirement that the winning bidder have 50 years of experience and that the winning bidder be based in Buffalo.

"So what do we know?" Shechtman asked. "We know that 50 years wasn't put in there by Lou Ciminelli or anyone at LPCiminelli, wasn't put in there by them. And Lou, when he learned about it, thought it was unjustified. And the headquarters in Buffalo, that wasn't put in there by Lou Ciminelli or anyone at LPCiminelli or Kevin Schuler to favor LPCiminelli."

The 50-year requirement was just a typo and the RFP was later changed to reduce the requirement to 15 years, Shechtman noted. In addition, he said that several other Buffalo-based companies bid on the RiverBend project.

"That requirement wasn't put in the RFP to favor LPCiminelli," Shechtman said. "It was put in the RFP to favor Buffalo."

Earlier, though, prosecutors told the jury in their summation that Schuler made clear that the RFP was tailored so that LPCiminelli would be the winning bidder.

"He said it was a precooked process," Assistant U.S. Attorney Matthew Podolsky said of Schuler. "It was not a merit-based process. It was cooked for LPCiminelli."

For someone charged with conspiracy and wire fraud, Ciminelli seemed to be in an outwardly good mood Wednesday.

For example, when lawyers gathered in the courtroom at around 11 a.m. because the jury sent the judge a note, Ciminelli offered a lighthearted response upon hearing jurors didn't have a verdict, but instead just wanted to see some of the evidence presented at the trial.

"It's just a drill," Ciminelli said, smiling, to no one in particular.

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